Opinion 21-168

December 2, 2021

Digest:         Whether an administrative judge may direct a court attorney-referee to comply with a memorandum from OCA Counsel does not raise any ethical issues, but instead only legal/administrative matters, which are outside the Committee’s jurisdiction.

Rules:          Judiciary Law § 212(2)(l); Opinions 19-142; 19-20; 18-57/17-166; 18-49; 18-45.

Opinion:

         An administrative judge asks if they may direct a court attorney-referee, who was appointed to “hear and determine” a matter, to comply with a 2019 memorandum from Counsel to the Office of Court Administration (OCA Counsel) that prohibits court attorney-referees from appointing or awarding compensation to Part 36 fiduciaries. The administrative judge has submitted copies of two contradictory memoranda on the subject. In the 2019 memorandum, OCA Counsel advises the court system’s administrative judges, “[w]e are aware of no reliable authority that authorizes the delegation of these appointment or compensation decisions to other officers, including court attorney referees and judicial hearing officers” and thus concludes such delegation is impermissible. The second memorandum was researched and drafted by a court attorney-referee who disagrees with the 2019 memorandum. Over the course of 23 pages, the court attorney-referee sets forth their own ethical concerns and contradictory statutory interpretation.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         We cannot address the issue submitted. Whether an administrative judge may direct a court attorney-referee to comply with OCA Counsel’s 2019 memorandum does not raise any ethical issues, but instead only legal/administrative matters, which are outside the scope of our jurisdiction (see Opinions 18-57/17-166; 18-45; see generally Judiciary Law §212[2][l]). We note, however, that a judge who acts in accordance with their good-faith legal determination of issues such as the one presented is presumed to act ethically, even if the decision is overturned on appeal (see Opinions 19-142; 19-20; 18-57/17-166; 18-49).